Sarvis et al v. Judd et al, No. 3:2014cv00479 - Document 35 (E.D. Va. 2015)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 1/13/2015. (sbea, )
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Sarvis et al v. Judd et al Doc. 35 JL_L_J1_ -^1: IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA ^ , , Richmond Dxvision ROBERT C. et ai., JN I32015 Jj CLERK. U.S. DISTRICT COURl WtCHMONO. va SARVIS, Plaintiffs, V- Civil Action No. CHARLES E. et ai.. 3:14cv479 JUDD, Defendants. MEMORANDUM OPINION This is (Docket No. DISMISS moved matter to dismiss before 23) . the Court DEFENDANTS' At oral argument, Count II of DECLARATORY AND INJUNCTIVE RELIEF was granted on (Docket No. 33) , the Plaintiffs' AMENDED (Docket No. MOTION counsel COMPLAINT 20) TO FOR and the motion For the reasons set forth below, the motion to dismiss will be granted as to the remaining claim, Count I. FACTUAL BACKGROUND The candidates Libertarian for Representatives, the Party United and one of Virginia, States independent several Senate and its House of candidate for (collectively, the (non-party) the United States House of Representatives of "Candidates") filed a complaint against members of the Virginia State Board of Elections ("Board of Elections"). (Docket No. Dockets.Justia.com 1.) Pursuant to an Amended Complaint, Candidates sought declaratory and (Docket No. injunctive 20), relief the from Virginia laws and practices that assign independent candidates and candidates from smaller parties a lower place on the voting ballot. violate The Candidates allege that these laws and practices their First and Fourteenth Amendment rights. (Am. Compl., Docket No. 20, ^[5 40, 54.) According to Virginia state law, a "party" or "political party" is an organization of citizens of the Commonwealth that, at either of the two preceding statewide general elections, received at least 10 percent of the total vote cast for any statewide office filled in that election. Va. Code § 24.2-101. To qualify as a "party" or "political party," the organization must have a state central committee and an office of elected state chairman both of which have been continually in existence for the six months preceding the filing of a nominee for any office. Id. A "recognized political party," on the other hand, is "an organization that, for at least six months preceding the filing of its nominee for [an] office, has had in continual existence a state central committee composed of registered voters residing in each congressional district of the Commonwealth, a party plan and bylaws, and a duly elected state chairman and secretary." 24.2-613. § A "recognized political party" need not have received 10 percent of the total vote cast for a either of the last two statewide statewide office in general elections. The Libertarian Party of Virginia is a recognized political party under Virginia law. (Am. Compl., Docket No. 20, f 6.) The Board of Elections assigns candidates a place on the ballot in the order prescribed by Va. 1 18. That provision requires that "political party" candidates appear first Candidates on the ballot in an Code order § 24.2-613. Id. determined by lot. representing "recognized political parties" appear next on the ballot in an order determined by lot. Independent (non-party) candidates appear last on the ballot in alphabetical order. Because the Candidates are not "political party" candidates, they cannot be placed in the first position on the next ballot. Id. ?[ 21. The Candidates allege that this violates their constitutional rights because candidates who are listed at the top of an election ballot receive an unfair "positional advantage" that fortuitously yields more votes than candidates not listed at the top of the ballot and Virginia has reserved this positional advantage for major parties. 29. Id. SI 23, DISCUSSION I. Legal Standard The Commonwealth has filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6) motion to dismiss, a complaint must "provide enough facts to state a claim that is Co., 551 F.3d 218, 222 V. plausible Twombly, 550 plausibility allows on U.S. when the court its face." (4th Cir. 2009) 544, the to Robinson 555 "A pleads the Am. Honda Motor (quoting Bell Atl.- Corp. (2007)). plaintiff draw v. claim has factual reasonable facial content inference that that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 550 556). A court "will accept the pleader's description of what U.S. 662, 678 (2009) (citing Twombly, U.S. at happened . . . along with any conclusions that can be reasonably drawn therefrom," but "need not accept conclusory allegations encompassing the legal effects of the pleaded facts." A. Wright 1357 & Arthur R. {3d ed. 1998) ; 2014 WL 1415095, *4 made Miller, the clear that Federal Practice and Procedure § Chamblee v. (E.D. Charles Va. Old Dominion Sec. 2014). analytical Co., L.L.C., "Twombly and Iqbal also approach for evaluating Rule 12(b)(6) motions to dismiss requires courts to reject conclusory allegations that amount to mere formulaic recitation of the elements of a claim and to conduct a context-specific analysis to determine whether the well-pleaded factual allegations plausibly suggest considering a an entitlement motion to dismiss, to the relief." II. Count I: 572 F.3d 176, 180 In court may "properly take judicial notice of matters of public record." Cnty. Mem^l Hosp., Id. (4th Cir. Philips v. Pitt 2009). Ballot Order Under Virginia Code § 24.2-613 The importance of a fair and functional electoral system to a representative democracy can hardly be gainsaid. Supreme Court has most the found it "beyond cavil that voting is of the fundamental structure." Indeed, significance Burdick v. under Takushi, 504 our U.S. constitutional 428, 433 (1992) (internal citations and quotations omitted). / Of course, not the "absolute." right See to vote id. And, in any manner one wishes without a is meaningful system to capture and reflect the will of the People, the right to vote is a mere abstraction. are fundamental, candidates' suspect Therefore, of the voters "not all restrictions imposed by the States on on voters' among candidates." If processes," rights Anderson v. elections sort of order, "[c]omraon rights eligibility for the ballot impose constitutionally- burdens (1983) . while the "are to be rather than chaos, Storer sense, as v. Brown, well as 415 to associate Celebrezze, fair and or to 4 60 U.S. honest and choose 780, if 788 some is to accompany the democratic U.S. 724, constitutional 730 law, (1974), compels then the conclusion that government must play an active structuring elections," Burdick, 504 U.S. at 433. may enact "comprehensive and sometimes role in Hence, States complex election .codes" notwithstanding the fact that "[e]ach provision of these schemes . inevitably individual's affects right to - vote the voting Candidates' rights liberty." "implicate rights Pisano v. complaint some degree to associate right - the with 460 U.S. at 788. reflects, affect voting, by the 743 Strach, to ballot and strands "interwoven access of Ballot access restrictions, for example, substantial protected his Anderson, restrictions Id. at 787. least and others for political ends." As at F.3d 927, associational First and 932 and Fourteenth (4th Cir. expressive Amendments." 2014). Because "the rights of voters and the rights of candidates do not lend themselves to neat separation," Anderson, 4 60 U.S. at 786, the Supreme Court has "minimized the extent to which voting rights cases are distinguishable 504 U.S. at 438. analyses of associative from ballot access cases," Burdick, Rather than conducting separate, crosscutting electoral rights, restrictions expressive rights, under due the rubrics process, or of equal protection, the Supreme Court has articulated a single framework for evaluating "based . Anderson, . . the constitutionality of state election laws directly on the First and Fourteenth Amendments." 460 U.S. at 787 n.7; see also Pisano, 743 F.3d at 934. This framework, established refined in Burdick v. Takushi, regulatory need interests justify the limitation' V. v. Reed, Anderson/Burdick 502 Anderson holds only that be v. Celebrezze *sufficiently U.S. test, 520 U.S. 279, the 351, 288-89 Court is and "the State's asserted weighty imposed on the party's rights." Twin Cities Area New Party, Norman in 364 guided Timmons (1997) (1992)), To by to (quoting apply the the following procedure: [The Court] must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests; it also to which those to burden the after weighing reviewing court whether the must consider the extent interests make it necessary plaintiff's rights. Only all these factors is the in a position to decide challenged provision is unconstitutional. Anderson, which a Amendment 4 60 U.S. challenged rights," scrutiny review Burdick, 504 subjected narrowly at to drawn the a at 'severe' to "Depend [ing] regulation or U.S. 78 9. burdens regulation more 434. deferential When the restrictions, advance will a state 7 upon First the and face standard of of strict review. "rights regulation interest to Fourteenth either plaintiffs' the extent must are be compelling importance. But when a state election law provision imposes only 'reasonable, nondiscriminatory restrictions' upon the First and Fourteenth Amendment rights of voters, the State's important regulatory interests are generally sufficient to justify the restrictions." Id. (internal citations and quotations omitted). In other words, modest burdens are balanced "against the extent to which the regulations advance the state's interests," Pisano, 743 F.3d at 936, but there is a presumption that important state interests are "generally sufficient to justify nondiscriminatory restrictions," Wood v. Meadows F.3d 708, 715-717 {4th Cir. 2000) 789). Justice O'Connor reasonable, (Wood II), 207 {citing Anderson, 460 U.S. at summarized the rationale for flexible approach in Clinqman v. Beaver: This regime important reflects role of the limited courts electoral regulation. in but reviewing Although the State has a legitimate - and indeed critical - role to play in regulating elections, it must be recognized that it is not a wholly independent or neutral arbiter. Rather, the State is itself controlled by the political party or parties in power, which presumably have an incentive to shape the rules of the electoral game to their own benefit. Recognition of that basic reality need not render suspect most electoral regulations. Where the State imposes genuinely neutral associational rights, only reasonable restrictions there is no and on threat to the integrity of the electoral process and no apparent As such reason for judicial restrictions become intervention. more however, and particularly where discriminatory effects, there is 8 severe, they have increasing this cause for concern that those in power may be using electoral rules to erect barriers to electoral competition. In such cases, applying heightened scrutiny helps to ensure that such limitations are truly justified and that the State's asserted interests are not merely a pretext for exclusionary anticompetitive restrictions. 544 U.S. 581, added). The Candidates' 603 foregoing contention rights by using a that, in turn, of (O'Connor, principles that the J., concurring) guide the Commonwealth ballot that provides a channels largest parties, candidates (2005) "windfall or (emphasis analysis has of offended the their "positional advantage" votes" to the Commonwealth's while depriving smaller parties and independent the same opportunity to capture those "windfall votes." A. The Candidates' The first step Burden in the Anderson/Burdick analysis is to "consider the character and magnitude of the asserted injury" to the Candidates' constitutional rights. and magnitude of the burden is determines whether the pivotal Examining the character because this Commonwealth's interests assessment must be compelling and whether the Commonwealth's selected means must be narrowly imposed tailored by reasonable the to its interests. Commonwealth in magnitude, the When are neutral Court conducts the in a restrictions character more and deferential constitutional analysis and the Commonwealth's important interests will usually prevail. The alleged burden in this case is that "candidates listed lower on the ballot are placed at a disadvantage compared to those who are listed in the top positions" due to a phenomenon known as "positional bias." 20, (Tr. of Oral Arg. 6, 44). higher ballot position "carries Guzzi, with 416 F. advantage is it a Supp. (Am. Docket No. 5 25); "Positional bias" is the notion that especially the first ballot position - certain 1057, Compl., statistical 1062 (D. advantage." Mass. 1976). Clough v. This perceived said to exist because of "the voting habits of a segment of the total electoral vote sometimes referred to as the ^windfall vote' or Monkey vote', i.e., the vote cast by citizens who are either uninformed about or indifferent to any or all of the candidates for a particular office on the ballot." Id. at 1063. According to this theory, the candidates placed higher on the ballot receive more votes than those placed lower on the ballot "not from any thoughtful or meaningful choice by voters, but from . Graves v. McElderry, Of course, Virginia's candidates of fatigue, apathy or confusion." 946 F. Supp. 1569, 1579 (W.D. Okla. 1996). the existence of this phenomenon alone is not - and could not be - is . . voter the burden; statutory the rather, scheme, established, 10 the restriction at issue which and involves larger, placing parties ahead the of smaller parties and independents on the ballot, thereby depriving the Candidates of an opportunity to reap the windfall vote. That occurs "tiered ballot states. (Def. Commonwealth political order," Ex. places third. Id. the Commonwealth method State employed Survey, "political second, Va. categories, drawing. a 2, parties" candidates second because Code § candidate Id. by parties" so-called No. 24-2.) The first, "recognized independent and (non-party) 24.2-613. order the twenty-one. other Docket Within is the determined Within the third category, alphabetically. uses first by and random candidates are ordered In order to qualify as a political party and be eligible for the first tier lottery, a party must receive at least 10 percent of the total vote cast for any statewide office in either of the two preceding general elections. 24.2-101. is to reserve ("When § The cumulative effect of ballot-ordering regulations the so-called "positional advantage" parties with more widespread support. 933 Id. deciding unconstitutionally whether burdensome, Cf. for -larger Pisano, a state's filing we evaluate the 743 F.3d at deadline combined is effect of the state's ballot-access regulations."). The existence and degree of the "windfall-vote phenomenon" that underlies highly debated variables. See the and asserted subject Clouqh, 416 "positional to F. 11 a advantage" multitude Supp. at 1063 of ("A theory is confounding number of written the studies , designation elections. . . of . Some plaintiff's State Bd. purpor[t] . of factual the first them 861 F. effect of demonstrate position support, premise."); of Elections, (discussing . to 282, incumbency, race visibility on positional bias). of resolving this motion, vote phenomenon^ the exists and of outcome of some party assumes some New York (S.D.N.Y. 1994) affiliation, However, Court contradict, Party v. 288-90 that and effects the on New Alliance Supp. the for that and the purpose the windfall- positional advantage accrues to those candidates whose names appear at the top of the ballot. The vote, if Court it is does also initially exist, is a skeptical the windfall constitutional burden of that concern. It is not entirely clear that positional bias claims should have any constitutional significance because the theory of injury for such claims has been predicated to date upon the troubling notion that "windfall" votes are meaningless compared to "real" votes and thereby dilute the impact of votes cast by more "thoughtful" or "informed" voters.^ ^ The exact quantification of this phenomenon is not at issue. When asked at oral argument whether the Candidates intended to introduce evidence of the percentage at stake, counsel responded that their proposed expert "will not give a number." (Tr. of Oral Arg. 59.) Instead, counsel for the Candidates took the view t h a t ^ the number does Gould V. Grubb, not make a difference. Id. 536 P.2d 1337, 1343 {Cal. 1975) 12 (holding In fixed for typical vote districts less than dilution results votes cases, in votes cast in malapportionment among from large districts counting small districts because it takes a larger number of voters in the former district to have the same electoral impact district. as That a smaller form of number of voters in disenfranchisement constitutional principle of "one person, Sims, 377 U.S. On case the law, 533, other the hand, Court motivations of voting invalid are voters' went to protected the the the exercise irrational vote is voters one vote" because each prevailing have and had meaningful asked sciences; and cast of See Reynolds the as their look behind the their reasons for effect of is not other It worth just a represents in democratic a making result. ballots bias to a it just as much of positional that hold "windfall vote" social polls the implicitly and less remembering that of is the (1964). under individual ballots anomaly 567 latter violates individual's vote is not accorded the same weight. V. the a statistical individuals as who constitutionally rights. vote is a And, rational "an one." that an "election practice which reserves such an advantage for a particular class of candidates inevitably dilutes the weight of the vote candidate of who all those is not electors included who cast within their the ballots favored for a class"); Graves, 946 F. Supp. at 1579 ("This accrual of randomly or irrationally selected windfall votes causes a dilution of the number of votes which are meaningfully and thoughtfully cast by more careful or interested voters at the election polls."). 13 New Alliance, 861 F. Supp. at 297. of uninformed voters, Supp. may, at 1067 they should inform them. ("[Candidates] have access in theory and possibly in practice, eliminate the donkey position bias."). "no If candidates want the votes on right reasoned candidates' positions, 484 Yet, complaint ballot in ordering voters and so educate them as to eliminate wholly the rational of free also (D. statistical the from Schaefer Md. Nov. 30, here have not election, issues other v. and the ^irrational' Lamone, 2006), based 2006 aff'd, U.S. 248 Fed. 2007). Candidates terms a and *12 (4th Cir. the to see LEXIS 96855, App'x. thus consideration considerations." Dist. and those 416 F. Moreover, and perhaps unfortunately, there is constitutional solely vote to Clouqh, of vote dilution. requirements deprives explicitly Their cast their contention is them of a chance that at the "windfall vote." The ballot is accepted as "the state devised form through which candidates viewpoints." and Graves, voters 946 F. are Supp. permitted at 1578. to express their Because the ballot is an inherently and necessarily limited vehicle for political expression, the format and structure of the ballot may implicate expressive purposes Burdick, rights of and present conducting the 504 U.S. at 437-39 a cognizable restriction Anderson/Burdick analysis. for the See (weighing petitioner's claimed right 14 to cast holding a "protest that the burden on voters' serve "to vote" State's under the Anderson restriction "imposes framework only a and limited rights to make free choices" because elections winnow out and finally reject all but the chosen candidates" rather than "a generalized expressive function"). Even assuming that positional bias exists and that it may be cause for constitutional concern, the Court concludes - and the parties agree - that the burden at issue in this case is not severe. (Tr. Oral agreement, it is useful to understand why the alleged burden is not a severe of Arg. 45, system. The that Supreme it Court favors has the traditional "repeatedly at upheld politically neutral regulations that have the effect of channeling expressive activity at the polls." U.S. that the tiered approach here at issue is politically neutral notwithstanding the fact reasonable, Notwithstanding one. To begin, two-party 53.) 438. Thus, when a regulation is not "unreasonably exclusionary," i t "may, traditional two-party system." facially Burdick, 504 neutral and in practice, favor the Timmons, 520 U.S. at 367.^ That is Virginia's tiered-system. ^ Anderson distinguished between restrictions that permissibly "favor a ^two-party system'" and those that impermissibly favor "two particular parties - the Republicans and the Democrats and in effect ten[d] to give them a complete monopoly" through the "virtual exclusion of other political aspirants from the political arena." Anderson, 460 U.S. at 802 (citing Williams v. 15 First, Virginia's laws do not entrench particular, identifiable parties in power or foreclose smaller parties and independents from competing in any meaningful way.^ By placing any party that has received at least 10 percent of the vote in the first tier of the ballot, the regulation "in no way freezes the status quo, but implicitly recognizes the potential fluidity of American political life." Jenness v. 439 Fortson, 403 U.S. 431, (1971). Second, that tiered distinguish support and ballot between parties ordering parties with less laws, with such as Virginia's, widespread demonstrable electoral electoral success have also been found neutral specifically in contrast to ballot ordering laws that place particular parties first on the ballot. Compare Graves, law that 946 F. Supp. at 1579 (holding unconstitutional a "effectively selects Democratic party candidates for public office for the top position . . . on any General Election ballot.") Cir. and Sanqmeister v. 1977) Rhodes, (holding Woodard, unconstitutional 393 U.S. at 23, 565 a F.2d 460, "practice 462 by (7th Illinois 31-32). ^ The ballot ordering laws provide a reasonable and neutral system with a first surpassed by third tier threshold that can be, and has been, parties. (Def. Ex. 1, Declaration of Custodian of Records, Docket No. 24-1, at S[S[ 6, 7, Ex. E at 32, Ex. F at 35) Independent after its (listing the Virginia Reform Party, f/k/a Virginia Party, 1994 first nominee on for the U.S. vote) . 16 1996 general Senate election received 11.4% ballot of the County Clerks of placing their own political party in the first or top position on voting ballots in all with Libertarian Party of Colorado v. F. Supp, 687, statute (D. Colo. issue at 692 in Graves/ neutral. It first-tier ballot positions relegate does 'all not 1996) Buckley (Buckley I) , Colorado's statute candidates is by party affiliation, for position Comm'rs of as public Plaintiffs Chicago v. 22, 25 (7th Cir. 1979) that 'the Different procedure office treatment of them from the ballot, suggest.") Libertarian ... minority be of for the nor does other and Party ("In Sanqmeister, adopted 938 facially eligible nominated by the Republican or Democratic Parties' tier elections") ("Unlike the ballot position classify candidates general than to a Bd. of it those second- Election Illinois, 591 F.2d [we required on remand] neutral parties that in character.' does not exclude prevent them from attaining major- party status if they achieve widespread support, or prevent any voter from voting for the candidate reasonably determined to state interest does be of his necessary to not result in choice, further a and an denial that is important of • equal protection."). Even if the law could be considered facially discriminatory against smaller discriminatory Reform Party parties burden of is Allegheny with not limited ipso Cnty. 17 v. facto electoral a support, severe Allegheny Cnty. one.' Dep't a See of Elections, 174 F.3d 305, 312, 315 {3d Cir. 1999) (holding that prescribing different fusion rules for major and minor parties "is, on its face, discriminatory," but applying "an intermediate level of scrutiny . . . to weigh, against the burdens imposed, any plausible justification the State has advanced"). The Fourth Circuit, for example, has not treated laws that classify on this basis as inherently severe. Carolina Bd. of Elections, Compare McLaughlin v. 65 F.3d 1215, 1221 N. (4th Cir. 1995) {"[T]he burden that North Carolina's ballot access restrictions impose on Pisano, protected 743 F.3d interests at 936 is undoubtedly ("[W]e conclude deadline] burden on Plaintiffs is modest. severe.") that the with [filing Because the deadline does not impose a severe burden, . . . we simply 'balance the character burdens extent and to magnitude which interests [.]"') . of the Here, the regulations imposed against advance the the state's as in Libertarian Party of Colorado v. Buckley (Buckley II), 8 F. Supp. 2d 1244, 1248 (D. Colo. 1998), the alleged discriminatory burden is "all but illusory" because "the Libertarian [qualify assertion for that Party the need first 10% of doubt uncharacteristic whose candidates previous elections." tier the of have only obtain on the vote is Id. 18 of ballot]. unattainable any political already 10% qualified party, for the . to . [A]ny reveals self- let the . vote alone one ballot in Next, the ballot order regulation in Virginia is also a far cry from the kinds of restrictions that warrant strict scrutiny. For example, as in Timmons, the Virginia ballot format does not "restrict the ability of the support, limit the party's access internal Timmons, to the structure, 520 U.S. at 363. The laws do not directly ballot. They governance, are and silent on policymaking." As the Sixth Circuit has explained, restriction does not affect a political party's ability to perform its members, primary and Harqett, functions, choosing typically is not V. and its members to endorse, or vote for anyone they like. parties' "If a [party] and such as organizing, a candidate, promoting considered severe." 767 F.3d 533, 547 recruiting the burden Green Party of Tennessee (6th Cir. 2014) (internal quotations omitted). The Candidates do not allege from competing on the ballot. disputing that those who that they have been excluded They have not been. desire to vote for There is no a Libertarian candidate or any other recognized political party or independent candidate task See made can find faster Schaefer, their and 2006 [the Candidates] candidate easier U.S. Dist. by of virtue LEXIS really alleg[e] choice is of" 96855, that on the at Supp. at 295. That singular 19 allegation ballot, tiered *12. [their] capture the windfall vote has been impeded." F. the design. "All that opportunity to New Alliance, of "a infirmity 861 is significant because restriction in it no demonstrates way independent-minded voters Anderson, 460 U.S. at that "limit[s] the the opportunities to associate in the 794. Commonwealth's Furthermore, of electoral arena." the argument that "windfall voters" are prevented from associating with the party of their choosing definition, making windfall their windfall is an voters choice. voters. If In the have they short, ballot order statute i s a Neither argument at have political party Those candidate barrier to doing so. at most, a not, By association in then imposed nor the they are not by Virginia's who or Commonwealth (Tr. desire an to argue of Oral Arg. vote independent for a 45, that 53.) recognized candidate Because the regulations at modest burden on the Candidates' Amendment rights, itself. minor one. strict scrutiny is warranted here. agrees. with disregarded any burden Candidates The Court war face no issue impose, First and Fourteenth the Court will undertake the more deferential constitutional analysis. B. The S t a t e ' s Under the Interests second step of the Anderson/Burdick framework, the Court must "identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule." Anderson, pose a only modest 460 U.S. burden, at 789. the 20 Because the regulations regulations need not be compelling or narrowly tailored. Burdick, 504 U.S. at 434. The Commonwealth advances three justifications for its tiered ballot order: avoiding voter confusion, party-order symmetry, and favoring parties with demonstrated public support. Before evaluating the Commonwealth's identified address Candidates' the evaluation is Commonwealth not has legitimacy interests, at the of Oral Arg. Allegheny the Cnty. point between 45-47.) that the attained" v. The Candidates Allegheny courts Cnty. must and that, Dep't on adopted of and "unlike . because the evidence interests. . Elections (Tr. to knowing the the object rational intermediate standard of review . such rely upon Reform Party of "insist classification must empirical that its laws further or advance the foregoing the that juncture through of Court contention this demonstrated strength however, threshold permissible not and basis make relation to review, be the 'does not permit the Court to supplant the precise interests put forward by the State with other suppositions.'" argue that evidentiary the 174 Supreme support under F.3d at Court the 315-16. has The Candidates also required intermediate more demanding standards of review applied in gender-based equal protection claims and certain free speech 536, "no claims. 539 (1996) persuasive See United States (undertaking a evidence in v. Virginia, 518 "searching analysis" th[e] 21 record" that U.S. 515, and finding the rule in question was "in furtherance of a state policy of 'diversity'"); Turner Broad. Sys., Inc. v. F.C.C., 520 U.S. 180, 195 (1997) (according "substantial deference to the predictive judgments of Congress," but Congress has "assur[ing] drawn that, reasonable in formulating inferences based its on judgments. substantial evidence"). The Candidates' the standard of position is not review Anderson/Burdick applied occasionally "intermediate" by courts. Cnty., 174 F.3d Anderson/Burdick "important to States V. least that Virginia, governmental employed are objectives.") See, the been e.g.. U.S. at challenged objectives substantially refer which 533 related ("The the to First Amendment if it advances the striking See must serves at important achievement be United show discriminatory Turner, the State's a States the regulation will to tests. (internal quotations omitted); ("A content-neutral as employing bears scrutiny that under characterized classification and burdens courts frequently intermediate First, Reform Party of Allegheny interests," 518 modest Second, framework most to has 314. regulatory similarity 18 9 at an illogical one. means of those 520 U.S. at sustained under the important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech interests."). Lastly, the than necessary to further Fourth Circuit itself has 22 those remanded a filing deadline case "for further factual development as to the burdens [of a filing deadline], and as to the interests of the Commonwealth in imposing that deadline." , 117 F.3d 770, 776 (4th Cir. 1997) However, side. Meadows (Wood (emphasis added). the weight of authority is not on the Candidates' Although there nondiscriminatory when the Wood v. a election State proffers F.3d at 773, is presumption regulations important that will state reasonable usually interests. be and upheld Wood I, 117 the Anderson/Burdick test itself has been described as "flexible" because the "State's asserted regulatory interest need only imposed." be sufficiently Timmons, 288-89). If scrutiny, weighty 520 U.S. the at 364 test Beaver, burden voters." 544 U.S. restriction] interests.") (quoting Norman, demanded that 504 at 587 the [to be] U.S. Pisano, of the limitation 502 U.S. at intermediate sufficient to outweigh upon [the see also ("We are persuaded that any burden [the U.S. [restriction] at 440 impose[d] (emphasis added); imposes is minor and justified by legitimate state (emphasis added). These holdings balancing test with a wide spectrum of outcomes. 460 the the Burdick Court would not have found the "legitimate limited State's] justify consistently interests asserted by the State the to at 789 (declining 743 F.3d at 936 burdens to apply a bespeak a See Anderson, "litmus-paper test"); (balancing the "character and magnitude imposed against 23 the extent to which the regulations advance the state's interests"); Republican Orq. of New Jersey v. Guadaqno, 453 (D.N.J. that 2012) Anderson three Circuit the that is [scrutiny] in Wood burdens 700 F.3d 130 "promulgated classification" the aff'd, I and a 900 F. Supp. 2d 447, {3d Cir. less categories"). for the "the its interests state must factually make it demonstrate necessary to the proposition, "limited to explaining that [regulations] discriminatory burden." It is true evaluate that, the precision "insist[s] Wood I, on interests not equate issue. to at the 715. test simply does nondiscriminatory at the had to not alleging to which plaintiff's the Court firmly rejected is generally an unreasonable, the relation the Court must "identify forward by the empiricism. between the State," The Court classification the plaintiff argued that the Commonwealth was which Id. Fourth 117 F,3d at extent burden put to required to "factually demonstrate" extent into Wood II, 207 F.3d at 715, 716.^ precise knowing the constitute under Anderson, does ^ In Wood II, Id. framework such an analysis that of development both as Anderson rights" even short of strict scrutiny, but the When the Plaintiff in that case appealed again, that and "pegged while yet been applied by the lower court at all. 774. (holding system not And, factual interests, 2012) categorical "weighing process" remanded the a Democratic- State The interest Fourth access 716. 24 necessitates Circuit not require that a ballot with empirical held state evidence the that "the justify restrictions in burden the at Anderson ^reasonable, this manner." adopted and the object to be attained" and will not "speculate about possible interests put justifications" forward by the or "supplant State" with the merely precise conceivable interests as it might under rational basis review. Reform Party of there Allegheny difference Cnty., between 174 F,3d at requiring articulate precise interests 315-16. the But Commonwealth with arguments and requiring the Commonwealth to produce to is a clearly tethered by reason hard data evidencing the teleological relation between the law and its stated aims. Unless strict only marshal enables its scrutiny is interests the Court to required by Anderson. . to show why [its] warranted, and present conduct the Commonwealth need a logical the weighing nexus. of precise That interests If the Commonwealth makes "no effort interests justify [the . . regulation]" or the Court finds the reasons "unpersuasive" or the law "too broad or too narrow" to be justified, insufficient. Id. at then the Court can hold the latter 316-18. The Supreme Court has instructed no differently. See Timmons, 520 U.S. State's interest the "strong in at 366 n.lO stability of (weighing the [its] political syste[m]" based on the State's briefing and oral arguments); at 375, 377 asserted (Stevens, interests J., must dissenting) at least id. (noting that "the State's bear some plausible relationship to the burdens it places on political parties" and "the State has not convincingly 25 articulated" how the statute advances its interest); id. at 383 (holding that ''our election cases 'the precise interests must "judge the put (Souter, restrict forward by challenged statutes J., dissenting) our consideration to the State'" only on and courts the interests the that demanded the State has raised in their defense"). Moreover, Commonwealth it to would prove be a curious empirically rule that its law furthered interest that it did not need to prove empirically. the Supreme Court "elaborate, was empirical quite clear verification State's asserted justifications," not required . . . restrictions.'" Socialist Workers Party, "Legislatures . Munro, lead . apply here. F.3d 479 U.S. did not require weightiness at 364. of the "States are electoral response impinge U.S. at on 195. court marshaled by a The imposition of at 189, 937 reasonable (citing 194-95 Munro (1986)). v. Rather, should be permitted to respond to potential the endless 'evidence' 743 the that 479 to . in significantly the 520 U.S. prior to the Pisano, provided of it In Timmons, 'to make a particularized showing of the existence of voter confusion deficiencies that an process is with foresight reasonable constitutionally Holding battles State." Candidates have the Id. aired does protected otherwise over and "would . . ., not rights." invariably sufficiency of the The same considerations conclusory doubt about the ballot's efficacy and thereby claim to have raised a factual 26 dispute that However, forecloses dismissal at stage of the case. the Commonwealth should not be made to carry a burden that is not legally its to bear. to this support the imposition Demanding empirical evidence of every routine and ordinary electoral regulation would "hamper the ability of States to run efficient and equitable elections." And, it runs contrary Court and the to the Beaver, explicit 544 U.S. holdings of the the State has electoral precise the implemented reasonable restrictions, interests legitimacy and State's empirical the put Court forth strength articulated burden Supreme Fourth Circuit. In order to "identify and evaluate" governmental when at 593.® of the and nondiscriminatory must rely the by State, interests, rationale bears a solely and The Court does verification that the not State's upon the determine ensure plausible imposed. interests the that the relationship to require interest is elaborate, a weighty one or that the regulation chosen advances that interest. This approach distinguishes even the most forgiving Anderson analysis from rational basis review but exhibits an appropriate deference to the in a legislature's field Const, art. ® Moreover, explicitly I, § 4, and nondiscriminatory judgments reserved cl. 1 ("The for a Times, coequal branch. Places and U.S. Manner of the conclusory allegations on which the Candidates rely would not were reasonable suffice under Twombly and otherwise. 27 Iqbal even if the law holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof"). 1. The first interest ballots voter Avoiding Voter Confusion interest identified by the in avoiding voter confusion. in a comprehensible confusion Schaefer, 2006 Alliance, 861 compelling and constitutes U.S. F. and Dist. Supp. interest at in manageable ballot."). LEXIS 296 fashion compelling 96855 at (holding "organizing is its Developing and ordering logical a Commonwealth a helps prevent interest.. *12; that see See also states New have comprehensible a and As the court explained in New Alliance, A manageable ballot is one where the parties, offices and candidates are presented in a logical and orderly arrangement. Were the ballot to be arranged in a scattershot fashion, the average voter would be unable to discern an underlying rationale to the ballot's organization. Identifying candidates who can demonstrate the support to qualify for party affiliation and separating them from those who cannot is one method of keeping the ballot in a format that the voter can easily read and assimilate. 861 F. Supp. at 296. According to unlike randomized easily and Dismiss, order" and quickly Docket and the Commonwealth, alphabetical find No. "having 24, a candidates at 15.) clear 28 tiered ballot ordering, allows by By party. voters (Def.'s "simplifying ordering ordering, [by] the Mot. to to ballot party," the Commonwealth voters Arg. to 22, avoids find voter candidates confusion and makes it by party affiliation. easier (Tr. for of Oral 33-34.) The Commonwealth's justification is not just plausible. is eminently identified, reasonable 2. interest logical. and properly advanced, least important, The and a The state It Commonwealth interest that has is at if not compelling. Party-Order Symmetry second in interest identified by the party-order ballot Commonwealth symmetry. is Streamlining its the ability for voters to engage in "straight party voting" through party levers or other devices is an "important interest" because it speeds up the election process. See Meyer v. Texas, 1806524, addition, that *5 (S.D. Tex. "constructing falls within the a 2011). In symmetrical "need to pattern construct ballot and prevent voter confusion." at and courts on the order 2011 WL have ballot" a New Alliance, also manageable 861 F. Supp. 297. The Commonwealth argues that tiered ballot ordering, randomized and alphabetical ordering, across 24, found offices at 15); possible. (Tr. (Def.'s of Oral Arg. is the same in each contest, affiliated candidate of 23). unlike also makes party symmetry Mot. to Dismiss, Docket "Voters see that No. the order making i t easier to find the party- their 29 choosing." (Def.'s Mot. to Dismiss, Docket No. 24, vote along party lines, (Tr. of Oral Arg. Courts reducing In addition, "if you want to i t makes it easier for you to do that." 22.) have voter at 15.) recognized confusion the through government's a logical and interest in comprehensible ballot format and improving the speed and ease with which voters cast their ballots. all offices on By maintaining the same party order across the ballot, the Commonwealth has implemented a system that is likely to improve the accuracy and efficiency of the voting process, 3. The Favoring Parties with Demonstrated Public Support third interest in support. interest favoring This including an important state interest. parties interest "political factionalism," identified and by that has the have been is its demonstrated widespread articulated stability," "preventing Commonwealth in many "preventing ways, excessive party-splintering," although these labels are not entirely interchangeable. In Timmons, the Supreme interest the Court held that States stability of their political election regulations traditional two-party "unreasonably several position courts upon "have systems" that may, system." exclusionary 520 a strong and can in restrictions" have found it past electoral at performance to favor 366-67. will reasonable 30 "enact reasonable practice, U.S. in not Although be condition or the ballot upheld, ballot access method. See Bd. of Election Comm'rs of Chicago, ("[W]e think that it was permissible to . convenient and intelligible as possible of voters, who, history indicated, . the great majority wish candidate of one of the two major parties."); F. Supp. at 299 a State may between to *6 a ballot entities {"[F]ederal interests in for New Alliance, that which rationally previously 861 courts basing have ballot noted placement a significant 2011 WL 1806524 state's upon a legitimate showing of past strength among the electorate."); Democratic-Republican Org. New 459 Jersey, voters to ballot, 900 F. easily which political a distinguishes attracted public support and those that did not."); Meyer, at vote {"[T]o assure the orderly conduct of elections, design those F.2d at 27 . make the ballot as for would 591 Supp. 2d at identify these is accomplished parties are candidates by clearly ("[I]t important and parties ensuring separated is that on for on the candidates the of ballot for from candidates nominated by petition."). The Commonwealth advantage over a two parties, but that rather multiplicity of parties" ten percent or more placing contends larger of by the vote." parties at its ballot encourages favoring does not "larger "parties (Tr. of the parties that of Oral Arg. top the solely 25.) ballot, have By the Commonwealth gives "most voters who favor one of the major party candidates the easiest ability 31 to find them on a ballot, particularly ballot." if Id. [there are] 34.^ The at a number of Commonwealth candidates claims on that the such an interest is permissible in the wake of Timmons. The Commonwealth is correct. . Legislature served at through 367. If ordering for the the decide healthy Virginia of ballot vast that employs reasonable these larger format majority political stability two-party system." regulations, consolidation that a to "The Constitution permits the makes of Timmons, and regulations parties. It voting voters. is By best 520 U.S. neutral may also easier is ballot favor the quite plausible and more efficient distinguishing between parties that have garnered more widespread electoral support and those that enhances have the not, the ballot ability of voters provides to a logical order that quickly comprehend important and objective information about the candidates and that fosters the stability of Virginia's political system. C. The Constitutional Analysis The final step in the Anderson/Burdick analysis is to weigh all of the Commonwealth's factors and interests consider make it the extent necessary to to which the burden the ' The Court takes judicial notice of the fact that "[t]h.e vast majority of voters will choose a candidate from one of the major parties." (Def.'s Mot. to Dismiss, Docket No. 24, at 16.) See Hall V. Virginia, 385 F.3d 421, 424 n.3 (4th Cir. 2004) (noting i t was proper during Rule 12(b)(6) review to consider publicly available statistics on an official government website). 32 plaintiff's rights. See Anderson, 460 U.S. at 789. Because the ballot ordering regulations are reasonable and neutral, a presumption will that prevail. Id. interests that that ballot its the State's at are 788. Virginia important, design important if furthers not regulatory has recited compelling, those there is interests a number and has interests. The of shown ballot ordering regulation is constitutional on that basis alone. Yet, even reasonable weighing, if the Commonwealth's threshold of prior classification electoral based success on a required the burden alleged here would remain a minor one and the statute would survive Anderson's balancing test. extent that the plaintiff[s] experienc[e] constitutional rights from [their] on the ballot, injury is regulatory that minor interests in "[T]o the any injury to [their] inability to be listed first organizing outweighed by the a clear and state's intelligible ballot, presenting a logical arrangement based on the reasonable and nondiscriminatory and displaying confusion." 2006 U.S. burden on sake of 2011 LEXIS argument, in WL and harm, Buckley II, of the 8 F. that the historical a simple 1806524 96855 candidates constitutional burden."); candidates Meyer, Dist. basis at *12 voters State's Supp. way that *6; see ("Even rises support, avoids also the interests Position of assuming to 2d at 1249 Ballot 33 at strength Schaefer, that level ("Assuming, the of outweigh Statute voter a that for the infringes even slightly on voting rights, that the I reiterate my conclusion . character and magnitude of any such . infringement . is outweighed by the State's interest in regulating and organizing their elections.") Republican ("Because Org. the (internal of New quotations Jersey, Plaintiffs' 900 burden, omitted); F. if Supp. any, is Democratic- 2d at 459-60 negligible, any reasonable regulatory interest provided by the State will ensure the statutes' satisfied constitutionality that [the Protection Clause or in the statutes] the thoughtful under do Anderson. not violate First T^endment."). analyses conducted ... by I the am Equal The Court concurs its sister courts throughout the country. While phenomenon "windfall randomized of which vote"), or the even rotational ballots Candidates' courts that complain have provisions constitutionally infirm "appropriate ... a must be followed to mandate address (capture found have single in every election." may ballot the ordering found it form of procedure that Gould, not of the 536 P.2d at 1343. This hesitancy reflects the very reason for a deferential review of the ballot design chosen by the Commonwealth. observed in Clouqh v. [N]one of As Guzzi, the available alternatives are themselves without disadvantages. Alphabetical order or a lottery would, in the end, give only one candidate first position, and would arguably entail an even 34 the court more arbitrary system than the present one. The rotational of states system, have . . . adopted, which a would number presumably allow all candidates to occupy first position on an equal number of ballots, and thus share equally in the advantage. However, the system is more burdensome to administer and more costly because of the necessity of printing more than one ballot; some critics say that it is also more susceptible to tabulation error. Without meaning to overstate these difficulties, which may well be offset by the greater equity or appearance of equity provided by the rotational system, still we cannot say that a legislature could not rationally give some weight to them in declining to adopt such a system. Clouqh, 416 F. Supp. sufficiently weighty at 1068. reason If for Virginia its ballot reasonable regulations in its service, has articulated design and a employed then the Commonwealth has acted within constitutional bounds and this Court may not stand in judgment of legislative body. that discretion exercised by the Virginia has met its obligations. For the foregoing reasons, ordering law is properly the Commonwealth's tiered ballot constitutional and the Commonwealth's motion to dismiss will be granted as to Count I. 35 CONCLUSION For the (Docket No. as to Count foregoing 23) reasons, DEFENDANTS' will be granted as to Count I II, which has been MOTION TO DISMISS and denied as moot dismissed voluntarily by the plaintiffs. I t i s so ORDERED. /s/ Robert E. Payne Senior United States District Judge Richmond, Virginia Date: January 13, 2015 36
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